December 5, 2017

“A black hole of due process” in New Mexico

BySarah Macaraeg, New Mexico In Depth | December 5, 2017

The for-profit Cibola County Correctional Center, an Immigration and Customs Enforcement detention center owned and operated by private prison giant CoreCivic, in rural Milan, New Mexico.

In December 2016, a 24-year-old small business owner, who asked to be identified as “Boris,” joined a protest in his native Cameroon. The country’s English-speaking minority of nearly 5 million people had begun coalescing into a movement for equal rights, “to tell the government our griefs, to make them understand that we have pain in our hearts,” Boris, who was recently granted asylum after five months inside Cibola County’s immigrant detention center, tells New Mexico In Depth.

Teachers and lawyers led the first wave of dissent that October. The educators fought for their students to learn in English. The attorneys argued their clients should stand before judges who spoke their own language.

Boris was neither a teacher nor a lawyer. But he felt the economic strain of marginalization, in attempting to support his family, and was inspired to fight for democratic change under a regime that had been in power for 35 years. And so Boris took to the streets for a major demonstration in December. But he never made it home.

Halfway around the world, meanwhile, officials in New Mexico’s Cibola County were preparing for the late December arrival of the region’s first Immigration and Customs Enforcement (ICE) detainees.

Six months prior, CoreCivic, the private owner of both of Cibola County’s two prisons, had lost a contract with the Department of Justice (DOJ) following a scandal related to deaths in custody. But what the $3.7 billion company lost in federal funds under the DOJ in summer, it had picked up in new business with ICE by the fall, when New Mexico officials, CoreCivic and ICE finalized a $150 million, 5-year deal to hold immigrants at CoreCivic’s Cibola County Correctional Center.

Cibola detainees include those seeking asylum — a protection granted, by U.S. immigration law, to foreign nationals who are already in the U.S., or present themselves at the border, and meet the international definition of a “refugee.”

By the early summer of 2017, Boris would become one of them.

The protest he attended in Cameroon was met with bullets—and state repression that has since given way to escalating conflict, involving mass arrests, the blocking of internet access in English-speaking regions and ongoing allegations of unlawful killings. Four demonstrators died amid the December protest; as did others in demonstrations that followed. Boris survived but says he was among those rounded up and thrown in jail—which he then managed to escape.

He says he then spent the next six months making his way to El Paso, Texas, where he surrendered himself to border agents, as a refugee seeking asylum.

Boris was promptly locked up inside Cibola, where he navigated his court proceedings primarily alone, after attending trainings held inside the facility by local pro-bono lawyers.

“Coming to the United States was due to my understanding that the U.S. protects human rights of the first order,” he says. “That America preserves human rights and has dignity of persons. That was the reason I decided to come here.”

Granted asylum after five months, with a pro-bono lawyer at his side in his last appearance before the judge, Boris is grateful to be alive. But his experiences in Cibola have stayed with him.

“A refugee is not a criminal, guilty of some form of crime,” he says. “Putting an asylee in prison is just like adding more injury onto a yearning wound. They are already traumatized. Just imagine, fleeing your country for one dire reason or another and being confined like that, where there are people awaiting asylum for a year or more: 16 months, 17 months, 8 months, 10 months,” Boris says, recalling the stories of his fellow Cibola detainees. “It’s really bad.”

However challenging his experience, Boris recognizes that among Cibola asylum seekers, his outcome, of being granted asylum with the benefit of some legal aid, represents the exception rather than the rule. “I’m so grateful,” he says.

The problems of access to lawyers at Cibola are so dire—and illustrative of the barriers that immigrants face across the ICE detention system, nationally—according to the National Immigrant Justice Center (NIJC), that the organization has recently released a report spotlighting Cibola as a case study in what will happen if ICE continues to house detainees where they have little chance of accessing legal help.

“Insurmountable barriers to justice”

The report coincides with a high-stakes review, by the U.S. Supreme Court, of the length of time immigrants can be imprisoned while making their cases for asylum. In early October 2017, justices heard arguments on whether detainees fighting their deportation proceedings should have the opportunity to be released on bail when their detention exceeds six months—an opportunity previously affirmed by a lower court, now being reconsidered by Supreme Court justices. Affecting the roughly 34,000 to 45,000 people in immigrant detention any given day, PRI reports the impending outcome will be momentous.

But while the conversation is opening up in the highest court in the land, immigration enforcement operations continue to expand, with ICE recently seeking proposals for the creation of four new facilities across the U.S.

The agency’s national and regional public information officers did not respond to NMID’s request for comment on how many asylum seekers at Cibola have been detained longer than 6 months, nor did they provide explanation as to why asylum seekers who pose no demonstrable flight or public safety risk must be detained.

To understand the reality of access to counsel at Cibola, NIJC conducted a survey of regional immigration attorneys and identified only 21 lawyers throughout New Mexico and Texas who estimated they could, at most, take on a cumulative 42 clients at Cibola. The facility’s capacity is approximately 1,120. Unlike criminal court, the immigration proceedings that take place there do not come with the protected right to counsel—leaving most to fight their removal proceedings alone.

“We’re stuck with this misdiagnosis of deportation as a civil penalty instead of what it actually is, which is a really harsh punishment,” says report author and NIJC Policy Director Heidi Altman.

“Because of that, a lot of the due process and constitutional protections that apply in criminal court don’t apply in immigration court,” says Altman. “We have this huge pre-trial system where people are detained awaiting trial, against an adversarial government prosecutor.” The vast majority of people, she adds, are unable to get legal representation.

Altman says anti-immigrant rhetoric from the highest level of government has everything to do with an apparent disparity of sentiment toward pre-trial detainees. In the criminal justice system, a mounting wave of reforms, to keep people out of jail while awaiting trial, has swept across the country. But in immigration proceedings, pre-trial incarceration—of indefinite length and scarce access to counsel—has largely gone unchallenged.

“This administration has decided that, in policy and rhetoric, they’re going to demonize migrants and immigrants,” she says. “And we’re now seeing the consequences of that. Our society as a whole seems much more willing to accept a deprivation of rights for a population that their government is telling them deserves less.”

“If it was your brother, or your sister, or your mom who had to flee their home and go to a new place, how would you want them to welcomed there? If it was your son who was picked up for a silly driving offense, and then suddenly ended up in jail—and you might be separated from him for the rest of his life—would you want him to be able to get a lawyer?” Altman says.

State initiatives

New Mexico State Rep. Antonio “Moe” Maestas has begun pushing for a Legislative Hearing on Cibola and federal prisons in the state to take place in 2018. Photo credit/ Sarah Macaraeg

New Mexico State Rep. Antonio “Moe” Maestas is pushing for a hearing related to conditions in Cibola and federal facilities in New Mexico at large, following reporting on the Cibola facility published byNew Mexico In Depth in October. A veteran member of the Courts, Corrections and Justice committee, Maestas says the hearing will happen in the spring or summer of 2018 and will be open to the public.

“We have never, in my 11 years, had a hearing on federal facilities,” says Maestas, who envisions the involvement of federal officials and prison wardens, “to explain how many facilities we have, and if there are hopes of expanding federal facilities,” says Maestas. “Because, frankly, in a second Trump administration, mass deportation efforts is my concern.”

The CCJ committee currently holds regular hearings with officials from the state’s Corrections department, with whom Maestas says legislators have a standing transparency agreement. “Any legislator at any time can knock on the door and walk into a state prison. Theoretically we have that power,” Maestas says.

As for federal facilities, Maestas says, “I don’t know if we can implement the same mechanism.” But he believes the hearing will be an important start in understanding federal operations inside New Mexico, which ranks highest among all states in its reliance on private prisons.

An 11th generation New Mexican, Maestas believes the state needs to step up and lead the country on an altogether different basis. “New Mexico has a moral obligation to lead this country when it comes to rational and reasonable immigration policies. We have seen a series of immigrant waves, and New Mexico is unique in that the people here lived here prior to the U.S. invasion of Mexico.”

“The rhetoric coming from the extreme right nationally, that is espoused by some people locally, is not who we are as New Mexicans,” he says. “And it must be confronted and defeated.”

Initiatives in other states illustrate how different the situation in Cibola could be, with a hands-on commitment to due process and oversight.

In California, Attorney General Xavier Becerra fought and won the inclusion of $1 million per year in the state budget to allow for his office’s review of the conditions of all immigrant detention facilities, whether public or private. New Mexico’s Attorney General Hector Balderas, conversely, signed off on the commencement of CoreCivic’s incarceration of immigrants in Cibola with no apparent scrutiny over the company’s track record of deaths in custody, as previously reported.

And in New York, the City Council has directly addressed the root of the problems raised in NIJC’s report by funding the nation’s first public defender system for immigrants facing deportation. Helmed by three public defender organizations across the city, theNew York Immigrant Family Unity Project provides “free, high-quality legal representation to every low-income immigrant facing deportation in the City of New York, as well as to detained New Yorkers facing deportation in the nearby immigration courts in New Jersey.” A Vera Institute study on the program found that the involvement of appointed counsel resulted in a 1,100 percent increase in successful outcomes for detainees challenging their removal proceedings.

“Who else is going to help?”

Although New Mexico has its fair share of equally committed lawyers, two organizations dedicated to doing what they can for Cibola detainees—the New Mexico Immigrant Law Center and Santa Fe Dreamers Project—enjoy no such funding like organizations in New York.

No government assistance is provided to either organization for their work inside Cibola, which they’ve covered through grassroots emergency fundraising. And neither organization has the capacity to take on a significant number of direct representation cases—meaning their services are largely limited to providing detainees on-site trainings on how to represent themselves in immigration court.

A 26-year-old paralegal with the New Mexico Immigrant Law Center, Alejandro Macias watched family and friends struggle through deportation proceedings as he came of age in New Mexico. After walking away from a nascent career in finance, Macias is now focused on cultivating economic opportunities for DACA recipients amidst visits to Cibola twice weekly. However limited, he thinks the presence of legal aid is crucial.

“There’s zero hope for certain individuals,” he says. “No one else is going to go out and do this work, in this rural state with very little access to legal services,” he says. “Who else is going to help the African who’s fleeing persecution in his home country and who’s going to be helping that Central American kid who’s fleeing from gangs, or that Mexican transgender person who is fleeing because they’re being persecuted for their gender association?”

“In my community, we have a saying ‘Saliendo Adalante.’ Keep moving forward. But a lot of the time, it’s not even about that, about moving your family forward anymore. It’s about surviving. And that’s what some of these people are doing too. They’re just trying to survive.”

Do you have experiences from Cibola that you are willing to share? Please consider being in touch at sarah (dot) macaraeg @ gmail (dot) com or on Twitter @seramak. Published in partnership with the CJ Project.

Sarah Macaraeg is an award-winning investigative journalist based in Albuquerque. Her work has appeared at the Chicago Reader, The Guardian, Reveal from the Center for Investigative Reporting and VICE among other outlets. After moving from Chicago, she’s grateful to have met so many New Mexicans who are willing to share their stories. Macaraeg welcomes tips any time at sarah (dot) macaraeg @ gmail (dot) com. You can follow her work on Twitter.

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